Litigation and Dispute Resolution Methods

• Litigation exists on a continuum of methods for resolving disputes, ranging from least to most adversarial.

Negotiation

• Negotiation involves direct interaction between parties aiming to resolve a dispute, often through verbal communication, though it can be nonverbal.
• It stands as the most common form of dispute resolution.

Third Party Involvement (Retain Control)

• Mediation is facilitated negotiation with a third party which is nonbinding, where the mediator assists parties in reaching an agreement without imposing a decision.
• Parties maintain control over the outcome.
• Summary jury trials involve a mock jury impaneled by a court, often before a real trial, where parties present a condensed case version.
• The mock jury gives a nonbinding verdict, used when lawyers agree on facts but differ on case valuation, potentially leading to pretrial settlements after gauging real jury reactions.
• Nonbinding arbitration presents a case to a third-party arbitrator, lacking the power to bind parties to a decision, often used with experts.

Third Party Involvement (Cede Control)

• Arbitration involves parties agreeing to an arbitrator who acts as a judge in a bench trial, issuing binding awards equivalent to judgments or verdicts.
• Arbitration is more informal and streamlined, but appealing an arbitrator's ruling is difficult, making the award usually final.
• Litigation is a specified, inflexible process governed by Rules of Civil Procedure and Rules of Evidence, with early disposal options like motions to dismiss.
• Displays of power include strikes, fights, and war.
• Factors in choosing a dispute resolution method include cost versus stake, pecuniary loss compared to litigation, relationship between parties (ongoing vs. one-off), and contract provisions.
• Goals of the process, such as distributive outcomes, and impacts on third parties like children, also influence the choice.
• Timetable is relevant, considering litigation's potential length, along with client goals (establishing right/wrong vs. moving forward) and dispute nature (criminal, family, business).
• Control over the process, privacy concerns, and flexibility of solutions also play a role.

ADR

• A grievance occurs when a potential plaintiff believes they're entitled to something from a potential defendant.
• A claim emerges when the aggrieved party communicates this to the responsible party.
• Resolution can occur at the claim stage if the responsible party concedes.
• A dispute/negotiation arises when the responsible party refuses the demand, leading to negotiation, and often occurring before legal involvement.
• Most disputes resolve between parties without lawyers.
• Court filing doesn't guarantee a trial or judgment, with only small percentages of federal and state cases proceeding to trial.
• Clients dislike litigation due to its difficulty and human cost, and lawyers must advise clients, considering financial implications.
• Nominal winners in litigation are often the real losers.
• Litigation can establish public opinion precedent for future cases.
• Nuisance value of a lawsuit can lead businesses to settle to avoid prolonged conflict, working best in financial matters.

Conditional Openness Strategy

• Conditional openness strategy (tit-for-dat strategy) starts with cooperation but responds in kind to defection.
• It provides an opportunity to remedy past issues.
• This strategy is effective long term and leads to more people opting for this.
• Cooperating in every round leads to an even split and preserves reputation.
• The best negotiators are perceived as genuine and trustworthy.